Putting Obamaâ€™s Transparency Guidelines to the Test

(written by Emilene Martinez, the National Security Archives, Washington DC and LNS-Guestblogger)

I started working at the National Security Archive in 2001 requesting information related to US foreign policy in Latin America to one of the most secretive administrations in American history. Asking for government records was not easy â€“ to begin with, backlogs plagued the system (with requests related to Mexico being responded in an average of 2 years, although the Freedom of Information Act clearly states that agencies have 20 days to comply). Furthermore, the administration issued clear guidelines that encouraged government officials to withhold information: the President rewrote the Executive Order on Classified National Security Information, removing a section that instructed agencies to declassify information if they doubted it merited to be classified. Attorney General John Ashcroft issued a Memorandum on Freedom of Information in May 2001 encouraging agencies to: â€œcarefully consider the protectionâ€ of national security when making disclosure decisions under the FOIA.

Increased transparency and government accountability were key commitments of Obamaâ€™s presidential campaign. More than sixty organizations, among them the National Security Archive, called on President-elect Obama to fulfill campaign promises and to: â€œrestore efficiency and openness to the Freedom of Information Act process, reform the classification system to reduce overclassification and facilitate greater declassification, and ensure that presidential records are handled in accordance with the law and Congressâ€™ intentâ€. On day one in office, President Barack Obama issued a memo on FOIA which directs all agencies to â€œadopt a presumption in favor of disclosureâ€ and apply this presumption â€œto all decisions involving FOIA.â€ President Obama also made clear that â€œthe government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.â€ Moreover Attorney General Eric Holder issued a Memorandum on the Freedom of Information Act last month, where he encourages agencies to: â€œmake discretionary disclosures of informationâ€ and clearly specifies that â€œan agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within a scope of a FOI exemption.â€

Now, the challenge for openness advocates is to put the new transparency guidelines to the test.

In December 2008, in partnership with journalist Manuel Mora MacBeath, the Archive requested information related to the activities of Mexican right-wing organizations in the 70s. To our surprise, last March we got a response from the CIA (after 3 months not 2 years) to two specific requests informing us that the agency could â€œneither confirm nor deny the existence or nonexistenceâ€ of the records pertaining our request because of â€œthe fact of the existence or nonexistenceâ€ of the requested records is classified. Our request was denied pursuant to FOIA exemptions (b) (1) and (b) (3) related to national security and information identifying personnel in sensitive units.

Yesterday, we filed an appeal to the CIAâ€™s Release Panel arguing that records related to the right-wing organizations mentioned in the request have been already disclosed in Mexico. Intelligence records from the Mexican Federal Security Directorate (DirecciÃ³n Federal de Seguridad) regarding these groupsâ€™ activities are available for public access at the Mexican National Archives and have been mentioned in countless publications, including the bestseller by journalist Ãlvaro Delgado â€œEl Yunque: The Radical Right in Powerâ€. The fact that the information regarding these organizations is publicly available in Mexico, and is no longer considered sensitive, lead us to questionhow the release of information related to them would affect the current national security of the United States. Furthermore, in the past the Archive has successfully obtained records from the CIA related to activities of other Mexican dissident groups during the same time period.

In our appeal, of course, we quoted the Obama and Ashcroft directives â€“ let us see how well all the discourse is put into practice. I will keep you posted on any new developments on the case!

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